Adverse Possession and California property owners

Adverse possession a concern for California property owners

The relatively obscure principle of “adverse possession” may be demonstrated by the story of a Bay area man who found a suitably abandoned house and simply moved in. The concept of adverse possession is rooted in the belief that society’s best interests are met when property and land are utilized productively rather than sitting fallow.

Steve DeCaprio had become aware of a turn-of-the-century bungalow that had sat vacant for many years. He also knew that the previous owner of the house had died in the early 1980s and that no one had come forward to claim it. The house was in major disrepair.

DeCaprio and a group of friends got to work making the place habitable. He got the water flowing, bought storm doors and painted the exterior, planted vegetation in the front yard, and cut down another backyard tree that posed a hazard to the house next door.

DeCaprio didn’t buy this house but adverse possession says he owns it

DeCaprio didn’t buy this house, but, after more than a decade of struggle, he now owns it through the process of adverse possession. The obscure law called “adverse possession” allows ownership not through purchase or inheritance (the usual paths to home ownership), but through occupation. It only applies when no one else can prove they are the real owner.

In California, adverse possession requires five years of continued use

In California, adverse possession requires five years of continued use which is “open and notorious” and “adverse” to the owner’s interest. The maintenance and upkeep and improvement of the property is required and for the five years of use the property taxes must be paid for the property being adversely possessed.

Through adverse possession, it is possible to gain ownership of just a few feet of property or many acres. Adverse possession is not necessarily intentional on the part of the party that gains possession. It can happen through a legitimate mistake. For example, a neighbor may have relied upon a faulty property description in a deed when building a fence on an adjoining property.

DiJulio Law Group
http://www.dijuliolawgroup.com

Evictions from Two Perspectives

Unlawful detainer actions and evictions

Evictions are also referred to as unlawful detainer actions. These actions are the process through which a tenant can be removed from either residential or commercial property for non-payment of rent or other specific reasons defined under California landlord/tenant laws. Whether you are a property owner or a renter, the law provides procedures that guide resolution of eviction cases and protect both tenant’s and client’s rights.

Following Landlord Procedures in Evictions

A landlord can’t begin an eviction lawsuit without first legally terminating the tenancy. This means giving the tenant written notice, as specified in the state’s termination statute. If the tenant doesn’t move (or “reform” in some manner, such as paying the rent or removing the pet from the premises), landlords can then file a lawsuit to evict. Legally, these termination notices are called an unlawful detainer, or UD, lawsuit. Although terminology varies somewhat from state to state, there are typically three types of termination notices used by landlords to terminate a tenancy due to some type of tenant misbehavior. They are: pay rent or quit notices, cure or quit notices, unconditional quit notices.

If the tenant has not done anything wrong, landlords may usually use a 30-Day or 60-Day Notice to Vacate to end a month-to-month tenancy. Cities with rent control may not allow this. They require the landlord to prove a legally recognized reason for eviction (“just cause”) of tenants.

Tenants Rights in Evictions

If the tenant doesn’t voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant. In order to evict the tenant, the landlord must file an unlawful detainer lawsuit in superior court.

The court-administered eviction process assures the tenant of the right to a court hearing if the tenant believes that the landlord has no right to evict the tenant. The landlord must use this court process to evict the tenant; the landlord cannot use physical measures to force the tenant to move. For example, the landlord cannot remove or change door locks, cut off utilities such as water or electricity, block access to the property, remove the tenant’s property in order to carry out the eviction. The landlord must use the court procedures.

If the landlord uses unlawful methods to evict a tenant, the landlord may be subject to liability for the tenant’s damages, as well as penalties of up to $100 per day for the time that the landlord used the unlawful methods.

DiJulio Law Group
http://www.dijuliolawgroup.com

Reverse Mortgages: The Potential For Elder Financial Abuse

…the worst possible product for an elder

Reverse mortgages are becoming a high profile example of the many ways in which financial elder abuse can occur. Older spokesmen picked for their trustworthy demeanor appear in endless television commercials that attempt to sell a trusting senior a product that would benefit the mortgage broker greatly, but amounts to the worst possible product for the senior in the later stages in of life.

These reverse mortgage marketers are very adept and skilled in the methods of successful selling to seniors. For example, one well organized group of marketing advisors is telling the sellers of reverse mortgages , “These [senior] consumers understand that simply having a reverse mortgage offer mentioned on the AARP website and through most senior web links is an excellent way to gain trust from your [mortgage] candidates as most of the seniors that would respond to this ad have had some contact or consideration with the AARP”

By associating trustworthy sources with their products, these marketers are pushing their products with a pervasive intensity that is designed to create a need for a reverse mortgage and to break down whatever resistances the seniors may have.

…an elder without a place to live

Incurring the debt of a reverse mortgage may be acceptable as long as the senior can live in that home. If the senior finds that they have to move out of the home into assisted living or a nursing home, the mortgage becomes due. Now, there is the expense of paying the reverse mortgage off, as well incurring the high cost of the assisted living or nursing home care. A situation like this can leave an elder without a place to live.

In 2006, the California state legislature passed SB 1609 which protects seniors from elder financial abuse associated with reverse mortgages. First, it requires that seniors receive financial counseling from a HUD approved counselor before applying for a reverse mortgage. Second, it requires lenders to prepare loan documents in the language in which the reverse mortgage was negotiated. Finally, it prohibits lenders from requiring a borrower to purchase an annuity as a condition of the loan.

DiJulio Law Group
http://www.dijuliolawgroup.com

Residential Issues with Toxic Mold Contamination

Contamination Concerns for Health and Property Alike

Toxic mold exposure may be responsible for any number of health problems faced by tenants and homeowners alike. Mold may occur in older structures and well as new construction that utilized substandard materials such as imported drywall. As public awareness of the problem grows, more legislation is passed to address the problem.

Toxic mold exposure has many aspects, and a variety of lawsuits may result from a single mold contamination incident. Continued efforts on the part of the public and the government are needed to ensure that the mold problem is controlled and that responsible parties are held accountable for their liability in the problem.

Discovery of mold is of concern to tenants and property owners alike. For tenants, health considerations come first, but financial impact can also be great. For the property owner, resulting litigation and repair costs may lead to the biggest financial liability of mold contamination. Mold contamination is usually preventable, as are the health issues to which tenants become vulnerable.

Mold contamination are caused by microscopic fungi

Molds are microscopic fungi that need plant and animal matter in order to grow. Molds are found in outdoor environments as well as in homes, offices and residential structures. Molds can be observed in colors such as red, green, blue-green, brown and black. Most molds pose little or no health risks to people. Exposure to certain molds can cause severe health complications and even death for the young and persons with compromised immunity.

Residential structures are seemingly the source of most mold complaints from tenants and property owners alike.

Tenants suffer the highest percentage of health problems related to toxic mold. This may be due, in part, to older structures that are be poorly maintained or were built with substandard materials. Tenants can bring suits against landlords, building management, or ownership companies for any related health issues caused by the presence of toxic mold in their residences.

Property owners also file a substantial number of toxic mold suits. Their problems frequently stem from poor construction, water damage, and low quality building materials. Mold may go undetected for long periods of time and result in large and hard-to-fix problems. Property owners can bring suits against contractors, inspectors, material suppliers or any other party who may have contributed to toxic mold problems.

Legal Recourse in Toxic Mold Cases

Toxic mold cases require diligent and thorough legal counsel and finding a competent lawyer who will take on a toxic mold case is not always easy. Toxic mold legislation is still relatively new and some lawyers may not be familiar with pertinent laws. As both construction and health laws may be involved, lawyers versed in both areas would be desirable.

DiJulio Law Group
http://www.dijuliolawgroup.com

The Mechanic’s Lien: A Contractor’s Way To Secure Payment

Placement of a Lien by an Unpaid Contractor

An unpaid contractor may place a mechanics lien or “hold” against your property as a way to collect for work performed. Subcontractors, laborers, or material suppliers, may also may place liens which are then recorded with the county recorder’s office. The use of a lien is a typical means used by contractors and subcontractors alike as a way to secure payment for labor performed or materials furnished. Liens allows for foreclosure action, forcing the sale of the property when they have not been paid.

Contractors may view construction liens as a more advantageous alternate to litigation when cost and the time involved are considered. Also, the fact that the lien attaches to the interest of the owner of the property, and the priority afforded to properly filed construction liens over prior mortgages or other encumbrances may be an advantage. The question of lien priority is dependent on several factors and is best addressed by a qualified real estate attorney.

A property may be the subject of a lien when the prime contractor or “direct contractor” has not paid subcontractors, laborers, or suppliers. Legally, the homeowner is ultimately responsible for payment – even if they already have paid the direct contractor.

A lien can result in a variety of problems

If the homeowner doesn’t pay the lien foreclosure may result. A court proceeding that employs judicial foreclosure sales (similar a to mortgage foreclosure) is how mechanic’s liens are enforced. The court must determine whether the requirements of the law have been met and, if so, the priority of the mechanic’s lien being foreclosed relative to the other liens or encumbrances on the title. Once that is determined, the court will order the property sold and the proceeds of the sale applied to the liens in the order of their priority.

You may have difficulty selling your home if there is a lien against it. Buyers often won’t buy the property unless the title is clear, meaning it has no liens. A contractor with a lien has the right to have your property sold in order to pay off the lien via a foreclosure sale. More commonly, instead of forcing a foreclosure sale, a contractor will wait until the property is sold.

This is because in many cases a mortgage was placed on the property before the contractor’s lien and so the mortgage must be paid off before any other liens are paid. If the contractor forecloses on the lien, they have to keep up the payments on the mortgage or lose the property.

In some instances a homeowner may sell the property and use part of the proceeds to pay off the lien.

DiJulio Law Group

http://www.dijuliolawgroup.com

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